| Mass. | Dec 9, 1876
The defendants’ appeal from the order of the court appointing a master can only be sustained upon the ground that the agreement in the articles of copartnership, to refer all disputed matters to arbitrators, ousts this court of jurisdiction. But it is well'settled that an agreement to submit to arbitration will not be held valid, either in law or equity, when its effect is to oust the court of jurisdiction. Wood v. Humphrey, 114 Mass. 185" date_filed="1873-11-15" court="Mass." case_name="Wood v. Humphrey">114 Mass. 185. Tobey v. County of Bristol, 3 Story, 800" date_filed="1845-05-15" court="None" case_name="Tobey v. County of Bristol">3 Story, 800.
The defendants insist that a court of equity ought not, in its discretion, to entertain the case, because the plaintiffs in their bill do not allege a refusal to refer on the part of the defendants, and the defendants in their answer deny any refusal, and allege that they are willing to refer. It was not necessary for the plaintiffs to allege that the defendants have refused to refer. By bringing their bill they have elected to resort to the jurisdiction of this court, and the defendants cannot defeat that jurisdiction by alleging that they are and have ever been willing to refer under the articles of copartnership. We need not decide whether the court might, in its discretion, decline to proceed in the case, if it appeared that the plaintiffs unreasonably refused to submit disputed matters to arbitration, because it does not appear in this case that there was such unreasonable refusal on the part of the plaintiffs. Order affirmed.